In May 2012, this court decided that Defendant Jamie Thomas was properly convicted of second degree murder. In reaching our conclusion, we rejected Thomas’s claims that the prosecution excluded potential jurors on the basis of their race and that the court erred when it admitted certain evidence of rap lyrics authored by Thomas into evidence. We also held that the trial court’s refusal to instruct the jury on provocation that could have reduced this murder to voluntary manslaughter was harmless error.

In deciding the instructional error was harmless, we applied the standard for review of error articulated by our Supreme Court in People v. Watson (1956) 46 Cal.2d 818, 836, as applied to a failure to instruct on provocation in People v. Breverman (1998) 19 Cal.4th 142, 177-178, and People v. Moye (2009) 47 Cal.4th 537, 556. That is, we reviewed the record to determine whether it was reasonably probable that Thomas would have been convicted of manslaughter had the error not occurred. We concluded it was not.

But the application of the Watson harmless error standard in this case was subject to an important caveat. Although the court applied the Watson test in Breverman and Moye, the defendants in those cases never argued the instructions were deficient under federal law. (People v. Moye, supra, 47 Cal.4th at p. 666, fn.5.) Thomas made that argument.

On August 29, 2012, our Supreme Court granted Thomas’s petition for review, and transferred his case back to this court “with directions to address defendant’s contention that the trial court’s refusal to instruct on heat of passion voluntary manslaughter constituted federal constitutional error.” (Order filed August 29, 2012.) For the reasons that follow, we conclude that the failure to instruct the jury on the potential effect of provocation to negate malice aforethought was federal constitutional error. Because the jury was not instructed that it could consider provocation to reduce a murder to manslaughter, we apply the test articulated in Chapman v. California (1967) 386 U.S. 18, 24, and we conclude under that test the error was prejudicial. Thus, we reverse.

On remand, the People shall have the option of retrying Thomas for murder. If the People choose not to retry Thomas for murder, the judgment will be modified to reflect his conviction of voluntary manslaughter enhanced for his use of a firearm. Thomas has also filed a petition for writ of habeas corpus that we have consolidated for disposition with the remanded appeal from the Supreme Court. In light of our reversal, we dismiss the habeas corpus petition as moot.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas and his father lived in the same apartment complex at 71 Pearl Street in Oakland as did the victim, Sam Navarro, and his wife Araceli Gamez. [1] The trial testimony presented a background of disputes concerning parking on the premises.

On approximately four occasions, Thomas had parked his car in a manner that blocked Gamez’s car. On all except one occasion, Gamez would wait for him to leave rather than confront him. On that occasion, Gamez knocked on Thomas’s door and asked the person who answered to move the car. After four or five minutes, someone came downstairs and did so. Navarro had also been blocked in several times, and Gamez had seen him go upstairs to talk to Thomas or his father about it.

The apartment manager, Sergio Torres, testified he was friends with Navarro and helped him get an apartment at 71 Pearl Street. He testified that visitors to the apartments often parked in the spaces designated for other residents and that this had caused problems.

Ignacio Ortiz testified that he and Navarro were close friends. On January 8, 2007, Ignacio and his brother Jose[2] drove to 71 Pearl Street because Ignacio was moving into an apartment there and planned to paint it. The two men arrived around six o’clock p.m. Jose and Navarro went to a store to get supplies while Ignacio painted. When the two men returned, it was dark outside. They parked Jose’s truck in the space it had been in earlier. A station wagon pulled in immediately behind them. Thomas got out of the station wagon and Jose and Navarro exited the truck. Ignacio was standing in the doorway of the apartment and heard Navarro and Thomas arguing. Navarro told Thomas that he “had to move his car, that it wasn’t the first time. He already told him that so many times about the parking spot, coming in and parking the car there....” Navarro, sounding upset and angry, told Thomas “Motherfucker, you got to move your car.” Thomas responded “Fuck off” and told Navarro to move the truck. Ignacio walked closer to the apartment stairs. Jose told Navarro, “Sam, leave that alone, man. It’s cool for me. We can handle it later on.” Jose began climbing the stairs.

Ignacio described the argument as “pretty heated.” Both men were using profanity but there was no pushing or physical interaction. When they reached the top of the stairs, Ignacio addressed Navarro in Spanish, “telling him to leave that alone. We can unload the truck later on. And that was when [Thomas] turned around and said: ‘What the fuck you say?’ ” Ignacio told Thomas, “he’s telling you [to] move the car, man. Just move the car.” Thomas responded, “Fuck y’all.”

According to Ignacio, Thomas was close enough to touch him and said, “What’s up?” Ignacio believed this was a challenge to fight. Thomas then swung at Ignacio’s face with his right hand. Ignacio ducked and “went for his legs, picked him up, body slammed him, and gave him a couple punches.” Thomas’s cell phone and keys fell from his pocket. Thomas began crying, then yelled, “you got me. It’s cool. It’s good.” Ignacio then stopped hitting him. He told Thomas to pick up his phone and keys and to “get the fuck out of here and get that car out.” Thomas got up, retrieved his keys and cell phone, and left. None of the remaining three men attempted to follow him.

Ignacio saw Thomas go to his car, open the driver’s side, reach under the seat and retrieve something. He was yelling for a woman in one of the apartments. She came out and Thomas told her to call his father. The woman returned to the apartment and a moment later Thomas’s father came out of a different apartment. Thomas’s father began speaking with Navarro. Neither Navarro nor the Ortiz brothers were armed. Navarro told Thomas’s father, “Hey man, you got to talk to your son. You know, my friend over here, he’s whipped his ass over the parking lot. I already talked to him. I told him about the parking a few times. He just don’t listen.” Thomas’s father told Navarro he would “take care of it.”

Thomas’s father approached Thomas in the parking lot and spoke with him for approximately one minute. Navarro followed Thomas’s father into the parking lot. Ignacio tried to dissuade Navarro from going but Navarro told him, “he’s good. The dad is already here. He’s going to talk to him. Let me talk to him.” Ignacio heard Navarro say, “Hey man. I just told you to move the car. You don’t need to behave like that.” Navarro and Thomas’s father appeared to be calm, but Thomas appeared upset. Ignacio heard Thomas’s father say, “Son, don’t do it.” He heard Thomas say “I’m going to get this motherfucker.” Thomas ...

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